A Question Of Care: Military Malpractice?

Carmelo Rodriguez was dancing with his niece just last year. By all accounts Rodriguez, a 29-year old, loved life, his family and the Marine Corps. He was also an artist, a father, and a part-time actor. He once appeared with Katie Holmes in a scene on the TV series Dawson's Creek.

An image of Sgt. Rodriguez with his Marine buddies in Iraq in 2005 shows him as a fit, gung-ho platoon leader.

CBS News correspondent Byron Pitts met Rodriguez two months ago. That once-buff physique had been whittled down to less than 80 pounds in 18 months by stage 4 melanoma. He was surrounded by family, including his 7-year-old son holding his hand. It was Rodriguez's idea we meet.

When Sgt. Rodriguez was in Iraq, military doctors, he says, misdiagnosed his skin cancer. They called it "a wart."

Eight minutes after Pitts met Sgt. Carmelo Rodriguez, and CBS News was preparing to interview him, he died.

At his family's insistence, Pitts and the camera crew stayed. With his body in the very next room, Pitts sat down with his relatives.

Pitts asked: "Why have us here for such a painful moment for your family?"

"[It was] His wish to have this known, because he doesn't want any other soldier to fight for his country and go through what he had to go through," said Rodriguez's uncle, Dean Ferraro. "To be neglected."

"He said, 'don't let this be it. Don't let this be it. Fight!'" his sister, Elizabeth Rodriguez, said. "That's what we're doing. We're gonna fight for him."

The "fight," as they call it is over what's known as the Feres Doctrine, a 1950 U.S. Supreme Court ruling that bars active-duty military personnel and their families from suing the federal government for injuries incidental to their service. In other words, unlike every other U.S. citizen, people in the military cannot sue the federal government for medical malpractice.

"When he enlisted in 1997, from his initial medical checkup - you know what I mean, physical - the doctor documented that he had melanoma, but never told him 'have anyone follow up on it,'" Ferraro said. "And that was back in '97. If we would have known back in '97, he would still be with us."

CBS News was given a copy of that medical report. The doctor notes skin as "abnormal." In further details he describes it as "melanoma on the right buttocks." There's no recommendation for further treatment.

Eight years pass. Sgt. Rodriguez is in Iraq.

"If a birthmark is about that big [she holds up two hands], and … it has a raise like that and is pussing, just let it go and say it's a wart??" his sister, Elizabeth, said. "Who does that; how does that happen? It's not right. It's not right."

His uncle Wilfredo Negron said: "Twenty-nine years old! You know all his life is good. Never into drugs, never into partying. Served his country faithfully. Served his Lord faithfully! He held on positive because he's a warrior. He's a Marine. He fought for his country and also for his family."

According to a veterans group that tracks soldiers who are misdiagnosed, there are hundreds of misdiagnosed cases across the country.

Twenty-five-year-old Air Force Staff Sgt. Dean Patrick Witt was one of them. Witt's family says his appendicitis was repeatedly misdiagnosed. After emergency surgery, Witt ended up brain dead.

He later died.

Pitts spoke with Military law expert Eugene Fidell, who is an attorney.

"You talk to military families who believe they have a malpractice case against the military and you tell them what?" Pitts asked.

"It's very very difficult when I get these calls, and I get these calls repeatedly over the course of a year. I probably get one ever couple months," Fidell said. "These people have to be made to understand that the law simply doesn't permit them to bring a lawsuit. They can bring a lawsuit, but their lawsuit will be a complete waste of time."

Pitts showed Fidell a copy of Rodriguez's medical records.

Military emails show that Sgt. Rodriguez's commanding officer, Lt. Col B.W. Barnhill, quotes a military nurse who called Rodriquez case "a major screw up."

An email also reads: "He should have been immediately seen and the wart removed and we may not have gotten to where we are now."

Pitts said to Fidell: "When he's in Iraq, the doctor says we'll have someone look at it when you get back to the states in five months."

He shook his head. "If I had a comparable condition myself, or a member of my family had, and somebody would have said, 'sorry, no one can see you for five months,' I would have fired the doctor!"

But Rodriguez didn't have that option.

"No, he didn't. I hope members of Congress are watching this show," Fidell said. "The law has got to change."

What's the military's response?

"I'm not prepared to discuss the Feres Doctrine," said Navy Capt. William Roberts, the medical officer of the Marine Corps.

Three weeks after CBS News' initial request, the Pentagon granted an interview with Roberts.

But he wouldn't discuss the Feres Doctrine, or Rodriquez's case, saying it was "under investigation."

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"I do not have those numbers at all," Roberts said.

Is that because those numbers don't exist or he can't provide them?

"I certainly don't know them," he said.

"If Carmelo Rodriguez was a civilian, his family would have the right to seek damages," Pitts said.

"I am sorry but I can't comment on the legality of that type of redress," he said.

For the Rodriguez family - the best they can hope for is a final report?

"They will get a final report if they ask for it," Roberts said.

Because he was a Marine, Sgt. Carmelo Rodriquez received a military funeral. But, it was an honor his family paid for.

As it turns out, Rodgriquez was forced into retirement due to his illness. Since he was retired, the military was no longer obligated to pay for his funeral.

His son, Carmelo Rodriquez IV, was shown the gratitude of a grateful nation: An American flag - and 55 percent of his father's benefits.

For those who would say these young men and women sign that line saying I turn my life over to the U.S. Military, hey willingly give up some of their rights?

"George Washington said that when a person puts on the uniform, he does not cede being a citizen," Eugene Fidell said.

Rodriguez was a citizen.

But to his family and his friends, he was a so much more.